Citation Nr: 1023234
Decision Date: 06/22/10 Archive Date: 07/01/10
DOCKET NO. 04-37 939 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Jackson, Mississippi
THE ISSUE
Entitlement to service connection for residuals of a low back
injury.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Mary C. Suffoletta, Counsel
INTRODUCTION
The Veteran served on active duty from September 1962 to
December 1966, and from January 1991 to April 1991; and had
periods of active duty for training (ACDUTRA) and inactive
duty for training (INACDUTRA) in the Mississippi Army
National Guard, including a period of ACDUTRA from June 20,
1998, to July 4, 1998.
This matter initially came to the Board of Veterans' Appeals
(Board) on appeal from a September 2003 rating decision that,
in pertinent part, denied service connection for residuals of
a low back injury. The Veteran timely appealed.
In February 2007, the Board remanded the matter to afford the
Veteran an opportunity for a hearing. In May 2007, the
Veteran testified during a video conference hearing before
the undersigned at the RO.
In September 2007, the Board remanded the matter for
additional development.
FINDING OF FACT
Resolving all doubt in the Veteran's favor, degenerative disc
disease of the lumbar spine increased in severity during a
period of ACDUTRA in June 1998.
CONCLUSION OF LAW
Degenerative disc disease of the lumbar spine was aggravated
during a period of ACDUTRA in June 1998. 38 U.S.C.A. §§ 101,
1110, 1131, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.6,
3.102, 3.159, 3.303, 3.306 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and Assist
VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).
In view of the Board's favorable decision in this appeal for
service connection for degenerative disc disease of the
lumbar spine, further assistance is unnecessary to aid the
Veteran in substantiating his claim.
II. Analysis
Service connection is awarded for disability that is the
result of a disease or injury in active service. 38 U.S.C.A.
§ 1110.
Service connection requires competent evidence showing: (1)
the existence of a present disability; (2) in-service
incurrence or aggravation of a disease or injury; and (3) a
causal relationship between the present disability and the
disease or injury incurred or aggravated during service.
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004),
citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see
also Caluza v. Brown, 7 Vet. App. 498 (1995).
The Veteran contends, in essence, that his current disability of
the lumbar spine is a residual of a low back injury that he
incurred during a period of ACDUTRA in June 1998. Specifically,
while unloading bags from a vehicle, the Veteran felt a sharp
pain in the lower sacral area radiating down his leg and
testicle, and transversing across his right back. The Veteran
was hospitalized and treated for back pain and for an inability
to void. The hospital's radiology report revealed no evidence of
degenerative or arthritic changes of the lumbar spine. His
service treatment records include a diagnosis of low back strain,
possible herniated disk with no evidence of neurologic
compromise.
Every Veteran shall be taken to have been in sound condition
when examined, accepted, and enrolled for service, except as
to defects, infirmities, or disorders noted at the time.
38 U.S.C.A. § 1111. The Board notes that the presumptions of
soundness and aggravation do not apply to periods of ACDUTRA
or INACDUTRA.
The post-service treatment records reflect that the Veteran began
physical therapy sessions for right-sided low back pain and spasm
in August 1998. Records dated in September 1998 reveal that the
mechanism of injury was lifting, cumulative trauma (overuse), and
turning; and that the Veteran's symptoms had not changed since
their onset in June 1998. The Veteran again was treated for
lower back pain in January and March 1999. On a "Report of
Medical History" completed by the Veteran in June 2001, he did
not report recurrent back pain.
Records, dated in October 2001, reflect that the Veteran had a
history of back pain that occurred with lifting while on ACDUTRA,
and had been aggravated again with lifting about five weeks
earlier. The Veteran reported pain mostly in the right side, but
with some pain in the left lumbar area. The Veteran also
indicated that his legs would get a tired feeling without any
specific cause, and that his back pain seemed to increase when he
became fatigued.
In February 2003, the Veteran's treating physician, Charles E.
Brown, M.D., indicated that the Veteran could not do push-ups,
sit-ups, run, bike, or swim; that the restrictions were
indefinitely; and that the Veteran had a history of chronic
lumbar/hip pain diagnosed since 1998.
Later that same month in February 2003, the Veteran was involved
in a motor vehicle accident and injured his neck and back. He
reported numbness and tingling radiating down his left side for
several days, and continued to report chronic low back pain.
In July 2003, computed tomography revealed degenerative disc
disease at L4-L5 with a bulging disc; and an MRI scan revealed a
broad-based herniated disc, right L4-L5.
During a February 2006 VA examination, the Veteran complained of
low back pain and bilateral lower extremity pain, as well as
fatigability, limitation of repetition, and lack of endurance.
He described injuring his back in service in 1998 while lifting
heavy objects off a truck, and reported the motor vehicle
accident in 2003. The examiner diagnosed chronic low back pain,
lumbar radiculopathy, and multi-level degenerative disc disease
of the lumbar spine.
Of note are medical opinions, both for and against the
Veteran's claim for service connection for residuals of a low
back injury.
In an April 2006 addendum, the February 2006 examiner opined that
the Veteran's current symptomatology was less likely as not
related to or caused as a result of the event described in 1998.
The examiner based the opinion on the Veteran's statement that he
re-aggravated his back in 2003 from a motor vehicle accident.
In May 2009, another VA examiner reviewed the Veteran's claims
file and noted that the Veteran had a diagnosis of lumbar strain
in January 1999, which was prior to the motor vehicle accident;
but, there were no follow-up treatment records. The examiner
also indicated that degenerative disc disease of the lumbar spine
is multi-factorial, and the most common reason was probably
genetic. The examiner commented that the Veteran was not serving
on active duty at the time of the motor vehicle accident. Based
on the evidence of record, the May 2009 examiner concluded that
it was not possible to say that it is as least as likely as not
that the Veteran's current back disability is a result of his
1998 injury. The examiner opined that a portion of the Veteran's
back pain could be coming from the 1998 in-service injury, which
could have been aggravated by the car accident. The examiner
also opined that it would be mere speculation to say that it is
greater than 50 percent probability that the Veteran's current
back disability is a result of the 1998 back strain.
In September 2009, the Board sought an expert medical opinion
to address the question of etiology of the Veteran's
diagnosed degenerative disc disease of the lumbar spine. The
expert reviewed the Veteran's claims file and treatment
records, and the medical opinions of record.
The expert indicated that there is clear evidence, from a
review of the record, that the onset of the Veteran's
symptoms referable to the lumbar spine was in 1998; and that
the Veteran's symptoms of back pain persisted well beyond the
weeks to months expected for a simple muscle sprain injury.
The referral of symptoms into the leg, as well, suggested
lumbar disc disease.
The expert also indicated that the medical literature
supports a genetic contribution to degenerative disc changes,
and that degenerative disc disease is fairly common. The
expert noted additional evidence in the claims file that
supports a genetic predisposition-namely, findings of
degenerative disc disease of the cervical spine at the time
of the Veteran's motor vehicle accident. Accordingly, the
examiner opined that the Veteran's lumbar degenerative disc
disease is multi-factorial and not caused by his active duty.
Nonetheless, the expert opined that there is clear evidence
that the events in service "as likely as not" exacerbated
the Veteran's degenerative disc disease; and that the
measurable degree attributable to the Veteran's back injury
in June 1998 was assessed as 50 percent, based on medical
considerations.
When assessing the probative value of a medical opinion, the
access to claims files and the thoroughness and detail of the
opinion must be considered. The opinion is considered
probative if it is definitive and supported by detailed
rationale. See Prejean v. West, 13 Vet. App. 444, 448-9
(2000). A medical opinion that contains only data and
conclusions is not entitled to any weight. Further, a review
of the claims file cannot compensate for lack of the reasoned
analysis required in a medical opinion, which is where most
of the probative value of a medical opinion comes from. "It
is the factually accurate, fully articulated, sound reasoning
for the conclusion, not the mere fact that the claims file
was reviewed, that contributes probative value to a medical
opinion." See Nieves- Rodriguez v. Peake, 22 Vet. App. 295,
304 (2008).
The medical evidence of record reflects a continuity of low
back pain ever since the June 1998 injury during a period of
ACDUTRA. While competent evidence suggests that the
Veteran's degenerative disc disease of the lumbar spine is
multi-factorial, the expert also attributed a "measurable
degree" of increased manifestations to the Veteran's back
injury in June 1998. Resolving doubt in the Veteran's favor,
the Board finds that the Veteran's degenerative disc disease
of the lumbar spine was aggravated during ACDUTRA and a
portion of his disability (50 percent) is attributable to
service.
ORDER
Service connection for degenerative disc disease of the
lumbar spine is granted.
____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs